In Re: Order Revising the Comment to Rule 500 of the Pennsylvania Rules of Criminal Procedure

FINAL REPORT1

Revision to the Comment to Pa.R.Crim.P. 500

AVAILABILITY OF THE ELDERLY TO TESTIFY

On August 31, 2016, effective October 1, 2016, upon the recommendation of the
Criminal Procedural Rules Committee, the Court approved the revision of the Comment
to Rule of Criminal Procedure 500 (Preservation of Testimony after Institution of
Criminal Proceedings) to clarify that the Rule 500 procedures were available in
circumstances where a witness is elderly, frail or demonstrating symptoms of mental
infirmity or dementia.
In April 2013, the Court created the Elder Law Task Force to study the issues of
access to justice being faced by older Pennsylvanians. In November 2014, the Task
Force issued a report with a number of recommendations intended to enhance the way
Pennsylvania elders interact with the state court system and are protected in cases
involving abuse, neglect, guardianship, conservatorship and other matters.2 Based on
the recommendation of the Task Force, the Court established an Office of Elder Justice
in the Courts to implement many of the recommendations in the report as well as an
Advisory Council on Elder Justice in the Courts to serve as the judiciary’s liaison to the
executive and legislative branches. In addition, in May 2015, the Court directed the
Committee to consider the recommendations of the Elder Law Task Force that related
to criminal procedure.
One of the Task Force’s recommendations related to criminal procedural issues
is the suggestion that the Comment to Pa.R.Crim.P. 500 (Preservation of Testimony) be
revised “to help ensure the testimony of elder victims and witnesses in criminal cases

1
The Committee's Final Reports should not be confused with the official Committee
Comments to the rules. Also note that the Supreme Court does not adopt the
Committee's Comments or the contents of the Committee's explanatory Final Reports.
2
See Elder Law Task Force Report, http://www.pacourts.us/courts/supreme-
court/committees/supreme-court-boards/elder-law-task-force.

Availability of the Elderly to Testify Final Report: 08/31/2016
can be preserved.”3 Rule 500 provides procedures for the pre-trial preservation of
testimony of those witnesses who may be unavailable to testify for trial or other
proceedings or where, due to exceptional circumstances, it is in the interests of justice
to preserve the witness’ testimony. Consistent with the Task Force’s recommendation,
the Advisory Council suggested to the Court that the Rule 500 Comment be revised to
further define the phrase “exceptional circumstances” to include the circumstances
where the victim is an elder, is frail, or demonstrates the symptoms of mental infirmity or
dementia, creating the risk that they will not be able to testify in the future.
The Committee considered that the language of the Comment already is broad
enough to cover the situation where a victim/witness would be unavailable to testify due
to age-related incapacity such as frailty or dementia. However, the Committee
concluded that it would be helpful to explicitly state in the Comment that these
conditions are contemplated by the rule. Therefore, the language of the third paragraph
of the Comment has been revised as follows:

“May be unavailable,” as used in paragraph (A), is intended to include situations
in which the court has reason to believe that the witness will be unable to be
present or to testify at trial or other proceedings, such as when the witness is
dying, or will be out of the jurisdiction and therefore cannot be effectively served
with a subpoena, or is elderly, frail or demonstrating symptoms of mental
infirmity or dementia, or may become incompetent to testify for any other
legally sufficient reason.

The revision also adds the word “other” before “legally sufficient reason” to the final
phrase of the paragraph since mental infirmity and dementia are also “legally sufficient
reasons” for determining unavailability.

3
See Recommendation 36, Elder Law Task Force Report, page 236.

Availability of the Elderly to Testify Final Report: 08/31/2016 -2-